Why you should care
Because the odds of an impeachment throwdown are rising.
Donald Trump’s wall at the Mexican border has got nothing on his wall across Pennsylvania Avenue.
The barrier is the third in Trump’s three-stage response to Robert Mueller’s report. The first was declaring victory and overselling the “exoneration” — as Mueller found no criminal conspiracy with the Russians to swing 2016, but did find plenty of obstruction-of-justice-like activities from the president. Then, after seeing the media coverage of the report’s unflattering bits, particularly what came from former White House counsel Don McGahn, Trump disputed the findings. Now he’s stonewalling: He’s preventing McGahn — or any other White House official — from testifying in Congress about it all.
Trump is well within his rights to claim executive privilege over internal White House debates. The Barack Obama White House did not allow its aides to testify in front of the Republican Congress, for example, on the Fast and Furious gun-running scandal.
But this is Trump, so he’s taking things to a new level. He’s resisting handing over his tax returns and directing aides to fight every subpoena to the death, whether it’s about Mueller or myriad other Democratic lines of inquiry. Trump gave his reasoning to The Washington Post as Congress is “obviously very partisan” (breaking: water is wet). The question is how the courts will agree with his interpretation of Congress’ oversight function — and how long it takes, with the 2020 election looming. Trump, then, is effectively baiting Democrats into impeaching him.
It’s a truism in Washington that impeaching Trump would be bad politics, allowing him to play the victim and ending either in a failed vote in the House (a possibility, given moderate Democrats’ squeamishness) or the Senate refusing to vote to toss him from office (you try naming 20 Republicans who would ever vote to remove Trump). Total exoneration!
While it’s hard to game out the political realities of impeachment — and Bill Clinton’s wasn’t a clear victory at all for him or for Democrats — Nancy Pelosi seems to think it won’t be helpful in keeping her speakership. The aforementioned squeamish Democrats ran not on Vladimir Putin but on health care. So they’d love to, say, work with Trump on lowering drug prices — something the White House has dangled of late.
As I’ve written in this space, the way forward for Democrats seemed clear from the Michael Cohen hearing: a series of blockbuster interrogations of current and former Trumpland figures, driving news coverage about the president’s unseemly and possibly criminal behavior. That, combined with a robust effort to unearth new damaging documents, would be the ticket to 2020 success that keeps all Democrats happy. It would be their Benghazi, from which we learned of Hillary Clinton’s private email server.
But in the face of a Trump stiff-arm, Democrats might need to go through an impeachment process just to get the theater (and dirt) they desire. While impeachment won’t make the White House cooperate, “it might marginally strengthen the House’s legal position in court, since the impeachment power — unlike congressional oversight — has an explicit foundation in the constitutional text,” says Andrew Coan, University of Arizona law professor and author of Prosecuting the President: How Special Counsels Hold Presidents Accountable and Protect the Rule of Law.
Specifically, impeachment could be a ticket to getting Mueller’s grand jury materials and underlying evidence, Coan says. “Under current D.C. Circuit precedent, such materials can be released only for certain limited purposes, one of which is use in another ‘judicial proceeding,’” he says. “House oversight hearings do not qualify as judicial, but impeachment proceedings probably do.”
It’s doubtful that under those blacked-out pages and within those raw interviews lies a bombshell that would significantly alter the public view of Mueller’s findings. But if your goal is to drip-drip out fresh scandal coverage, with bread crumbs leading beyond Mueller’s purview, impeachment might be the only way.
So when it comes to the wall between the White House and the Capitol? Congress might pay for it after all.